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How can the Defendant expedite a Divorce proceeding if the Plaintiff's attorney is not filing the necessary papers?

Le Roy, NY |

My brother's wife filed for divorce last December (14 mos ago) in one County over. She has an attorney but since retaining her has lost custody of the kids, went into rehab, as well as other legal problems. The atty thought it would be an easy divorce and she has not paid her any more money so everything has been put on hold. My brother's attorney is a friend of a mine and has put in many calls to her attorney with no success. We would like to refile somehow in the County they live in and have my brother serve her. Also, she is trying to get maintenance but She had a baby with another man a few years ago so couldn't my brother divorce her on the grounds of adultery? She works off the books and does make money but has always been very good at hiding it :-(

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Attorney answers 4


If your brother filed an answer and counterclaim, then his lawyer can file a RJI, request for judicial intervention, and a PC, preliminary conference, to have the case heard. Have your brother speak with his lawyer. If there is no summons and complaint, then yur brother's lawyer can file one and serve the wife.

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I picked up a copy of the Summons w/ Notice (all that has been filed-dated 11/2011). His atty replied w/ a notice of appearance only requesting a change in venue. Her atty has office in the county which proceedings were filed (we think bcs they live in a small town and she has/had so many legal problems did not want to appear in the local county court. I want to continue pro se for him (crazy, I know) but he now has custody of his 3 kids & 1 of them has baby. I think my first step is to file a motion to change venue, then motion to compel. In the summons she asks for EVERYTHING, but my brother has a restraining order (keyed his truck got 1 year, appeared in court they gave 5 more yrs) and she has been indicated twice for child abuse in the last year and her 17 yo has order of protection also. She has used up all of their FSA medical w/ 4 mos to go. He NEEDS this divorce :-( and her out of his life. Sorry so long, but any advice on how i can file would be appreciated. I was a legal secretary/paralegal for years so have a little knowledge w/ this.


File a motion to compel and sanctions.


Motion for Default, Default Judgment, Sanctions & Immediate Trial.

The author provides the preceding information as a service to the public. Author's response, as stated above, should not be considered legal advice. An initial attorney-client conference, based upon review of all relevant facts/documents, will be necessary to provide legal advice upon which the client should then rely.


Your brother's lawyer can file a motion in the current action and/or he has a right to a second action (your brother files it and has her served). If there is a negotiated agreement, that might work. But your brother may start the action only to find his wife changes venue to pull it into her county. He may be better off just filing motions in the current action.

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